Onger and Repatriation Commission

[2002] AATA 790

DECISION AND REASONS FOR DECISION [2002] AATA 790

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/738

VETERANS' APPEALS  DIVISION       )          
           Re      GEORGE ONGER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Deputy President          

Date11 September 2002  

PlaceBrisbane

Decision      The Tribunal determines that: 1.  The rejection of the Applicant's claim for medical treatment and pension for incapacity for lumbar spondylosis be affirmed. 2.  The correct diagnosis is changed to "Diffuse Idiopathic Skeletal Hyperstenosis" (DISH) syndrome. 3.  The Applicant was on "operational service" whilst on surveillance duty in Malaysian waters on or about 15 July 1959. 4.  The Applicant's back condition is not related to his operational service.     
  (Signed)
  D.W.MULLER
  DEPUTY PRESIDENT

CATCHWORDS
VETERANS AFFAIRS - eligible service – naturally occurring degeneration of spine – aggravation - eligible service – incorrect records

REASONS FOR DECISION

Mr. D.W. Muller, Senior Member             

1. This is an application by George Onger to review a decision to refuse a claim for medical treatment and pension for incapacity in relation to lumbar spondylosis, on the ground that the condition is not war-caused.

2. The Applicant claims that he has developed lumbar spondylosis as a result of a back injury he suffered while serving with the Royal Australian Navy in July 1959, or, in the alternative that the back injury aggravated his degenerative condition.

3. The Respondent rejected the claim on the following grounds:

   (i)On the claimed date of the back injury, 15 July 1959, Mr. Onger was posted to a British Naval shore depot in Singapore and therefore was not engaged in eligible service for the purposes of entitlements under the Veterans' Entitlements Act 1986.

   (ii)During the course of the said incident, the Applicant did not experience trauma to his back sufficiently severe to satisfy the Statements of Principles relating to the causes of lumbar spondylosis.

   (iii)The Applicant's lumbar spondylosis has been caused by generalised advanced disc degeneration due to constitutional changes.

4. The following matters are not in dispute and the Tribunal finds as follows:

   (i)George Onger was born on 18 September 1938.

   (ii)He served in the RAAF from 14 September 1955 to 7 March 1957.

   (iii)He served in the RAN from 29 April 1957 to 11 May 1976.

   (iv)He was discharged from the RAN at his own request.

   (v)He served in the RAN Reserve until 17 September 1993.

   (vi)Throughout his career in the Navy his training and duties principally involved cooking and catering.  He also had to do "other duties" on board ship, such as gun crew work, diver qualifications, small arms marksmanship, damage control assessment and first aid.

   (vii)He served aboard the HMAS Tobruk between 1 August 1958 and 11 January 1960.  HMAS Tobruk was attached to the Far East Strategic Reserve between and including, the following dates (among other dates).

   26.03.59        to        28.04.59
   19.05.59        to        11.06.59
   14.06.59        to        21.08.59
   04.09.59        to        27.09.59
   16.11.59        to        05.12.59

Service on the Tobruk during the time it was attached to the Far East Strategic Reserve constituted eligible operational service for the purposes of the Act.

(viii)Mr. Onger's service records show that between 11.07.59 and 31.07.59, he was stationed at the British naval shore base, HMS Terror in Singapore.

(ix)From 1976 to 1978, Mr. Onger was Branch Manager of the Students and Staff Cafeteria, Queensland Institute of Technology.

(x)From 1978 to 1982, he was Regional Manager for Spotless Catering Services.

(xi)From 1982 to 1988, he was Caltex Food Catering and Management Consultant, Central Queensland and Northern New South Wales.

(xii)From 1988 to 1993, he was National Food Catering and Training Consultants Co-ordinator for Caltex.

(xiii)He retired in 1993.

1. Mr. Onger has a problem with his back.  The Tribunal heard evidence from two medical specialists, Associate Professor Bruce McPhee, spinal surgeon, and Peter Sharwood, orthopaedic surgeon.  Professor McPhee was of the opinion that the applicant suffers from a condition of "diffuse idiopathic skeletal hyperstenosis" (DISH) syndrome, and he summed up his diagnosis and opinion in the following passages of his report dated 20 August 2001.

   "The claimant's back condition is related to a generalised and advanced degenerative condition involving the lumbar spine.  This condition (DISH) is well recognised and is constitutionally based.  It is probably genetically pre-determined.  On the balance of probability it inevitably results in chronic back pain irrespective of occupation or injury.  I would consider that the claimant's presentation is consistent with the natural history of DISH syndrome.
   The issue is not whether injury has occurred but whether any injury that may have occurred has had a permanent effect.  It would be most unusual for any individual to go through life without recalling some episode or injury to the back since back pain is ubiquitous and recurrent.  It might be reasonable to conclude that his back pain was the result of degenerative disc disease due to moderate or heavy work except that the claimant has a constitutionally based condition of the spine, which under normal circumstances is painful.  I would propose that irrespective of any injury that did not cause any structural change to the back (eg. Fracture), the claimant's present pain and level of disability is in keeping with the diagnosis of DISH syndrome.  There is no evidence of any nexus between DISH syndrome and injury."

   Dr. Sharwood agreed with Professor McPhee's diagnosis and opinion, but he went on to express the view that if Mr. Onger had experienced a significant trauma to his back in 1959, the trauma could have accelerated the rate of degeneration, or aggravated the naturally occurring degeneration.

1. Mr. Onger gave evidence at the hearing.  The Tribunal accepted him as an honest and reliable witness and accepted his account of the events which occurred in July 1959.  The Tribunal finds that:

   (i)In July 1959, the Tobruk was undergoing a self-maintenance refit at a British Navy depot, HMS Terror, in Singapore.

   (ii)During the course of the refit, the crew of the Tobruk, including Mr. Onger, lived on board the ship, but some of them went to the British shore base for meals.  Mr. Onger's duties included overseeing the provision of meals for the crew, both on the ship and on shore.

   (iii)On or about 15 July 1959, Mr. Onger was directed to take part in a surveillance operation on the sea off the coast of Malaysia and on the Malaysian mainland.  He was one of a party of six naval personnel, wearing civilian clothing, who sailed a timber motor fishing vessel of about nine metres in length, to Malaysia.  The object of the exercise was to note the presence, if any, of Indonesian infiltrators.  The naval personnel were to land on the Malaysian coast and walk through the villages to see if there were any Indonesians who should not be there.  Unfortunately, on the second night out, the fishing boat got stuck on a sand bar.  They all got out of the boat and attempted to push it off the sand bar.  They were in the water for about forty five minutes, rocking and pushing the boat.  Mr. Onger was at the stern of the boat with his back to the back of the boat.  The water was about 1½ metres deep.  Suddenly the boat came free from the sand bar and Mr. Onger's lumbar region was hit by the boat and he went under the water.  He then got up and eventually was pulled into the boat by some of the other men.  They sailed the fishing vessel straight back to the Tobruk.  When they got back to the Tobruk they unloaded the fishing vessel.  Five of them climbed a ladder to the Tobruk.  The sixth man drove the boat away to its mooring.

   (iv)Once on board the Tobruk, Mr. Onger noticed that his back had stiffened up.  He was unable to climb into his hammock.  He went to the sick bay on the Tobruk.  The ship's doctor then sent him to the British shore base medical centre.  He was there hospitalised at RNSQ Terror.

   (v)The official records show that Mr. Onger was admitted to RNSQ Terror on 17 July 1959, suffering from "influenza".  He spent eight days in hospital.  There is no official mention in the RNSQ records of back problems.  Mr. Onger told the hospital doctors about his accident and his stiff back.  They told him that he only had a superficial graze and that the stiffness was due to the influenza.  He was discharged fit for duty on 25 July 1959.

   (vi)Mr. Onger is very clear that he was never posted to HMS Terror and that he remained as part of the Tobruk crew at all times during July 1959.

2. The Tribunal accepts that the official records are not accurate when they record Mr. Onger as having been transferred to, or stationed on, HMS Terror between 11 July 1959 and 31 July 1959.  The Tribunal accepts that when Mr. Onger was acting as part of the surveillance crew on the motor fishing vessel on 15, 16 or 17 July 1959 he was engaged in eligible operational service for the purposes of the Act.

3. The first mention of back problems in the official records of Mr. Onger occurred on 6 June 1966.  He had a back spasm when he was sitting at home with his children.  At the time he was attached to the shore base HMAS Melville, Darwin.  He was taken by ambulance to the Darwin civilian hospital.  The hospital records show:

   "6.6.66           Back pain – no clear history of injury.
     S.L.R. (L) AND (R) NAD.
     Muscular Power        (L) =    (R).
     Reflexes  (L)       (R).
     R.J.     ++       ++
     A.J.     ++       ++
     Babinski        ?        ?
   8.6.66.           For pillow and spinal exercises.
   11.6.66.         Up and moving.
   15.6.66.         Can walk with pain.  Home and Navy.  Avoid bending
     for physio."

1. The only other mention of back problems is on a medical questionnaire filled in by Mr. Onger on 21 February 1969.  He said that he suffered from "intermittent back pain" and that he had suffered "sub acute back pain Darwin 15-6-66."

2. In a similar questionnaire filled in by Mr. Onger on 13 February 1976, he said he suffered no disabilities at that time but that he had suffered from a back disability during service.

3. The Repatriation Medical Authority has determined by Instrument No. 27 of 1999 a Statement of Principles (SOP) concerning lumbar spondylosis.  Those parts of the SOP of possible relevance to Mr. Onger's case are:

   "2.       (a)       This Statement of Principles is about lumbar spondylosis and death from lumbar spondylosis.

   (b)       For the purposes of this Statement of Principles, "lumbar spondylosis" means degenerative changes affecting the lumbar vertebrae and or intervertebral discs, causing local pain and stiffness and or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, attracting ICD-9-cm CODE 721.3 721.42 OR 722.52.

   Basis for determining the factors

   3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that lumbar spondylosis and death from lumbar spondylosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

   Factors that must be related to service

   4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

   Factors

   5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of a person's relevant service are:

   (h)suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;  or

   (s)suffering a trauma to the lumbar spine before the clinical worsening of lumbar spondylosis.

   (Factor 5(S) applies only to material contribution to, or aggravation of, lumbar spondylosis where the person's lumbar spondylosis was suffered or contracted before or during (but not arising out of) the person's relevant service;)

   8.  For the purposes of this Statement of Principles:
   "trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine.  These acute symptoms and signs must last for a period of at least seven days following their onset."

1. There is no doubt that the medical evidence given by the two specialists leads to the conclusion that Mr. Onger suffers from a generalised and advanced degenerative condition involving his lumbar spine (DISH syndrome).  It is constitutionally based.  It was not caused by any injury to his spine.  It was not caused by anything that happened to him while he was in the Navy.  There is no reasonable hypothesis linking the causes of his back condition to his Naval service.

2. The only matter which remains for consideration is whether the injury which Mr. Onger suffered in July 1959, accelerated or aggravated the naturally occurring degeneration, suggested as a possibility by Dr. Sharwood.  Apart from the fact that Dr. Sharwood's suggestion is highly speculative, there is no evidence upon which it would be possible to determine what contribution, if any, was made by Mr. Onger's back injury forty years ago to his current condition.  The other problem is that the SOP for lumbar spondylosis envisages that for trauma to have played any part in the lumbar degeneration, it must have been significant enough to produce acute symptoms and signs with altered mobility or range of movement, for a period of at least seven days.  The Tribunal does not accept that an injury to the spine to the degree envisaged by the SOP would have been regarded by the medical staff at RNSQ Terror as a superficial graze and that the stiffness was due to influenza.  (There is no SOP for DISH syndrome).

3. The Tribunal finds that the degree of trauma experienced by Mr. Onger in July  1959, was not sufficient to satisfy the SOP for lumbar spondylosis, nor did it make a material contribution to, or aggravate, his generalised degenerative condition.

4. The Tribunal affirms the decision to refuse a claim by the Applicant for medical treatment and pension for lumbar spondylosis.

5. The Tribunal changes the diagnosis to DISH syndrome.

6. The Tribunal determines that the applicant's back condition is not related to his operational service.

   I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Deputy President.

   Signed:         .....................................................................................
              B. Hitchcock, Personal Assistant

   Date/s of Hearing  16 November 2001                   
   Date of Decision  11 September 2002
   Counsel for the Applicant        Mr. R. Clutterbuck
   Solicitor for the Applicant         Streeting Haney
   Respondent  Ms. L. Shearer, Departmental Advocate